(ii) The Application for stay orders dated 1 April 2025 is dismissed.

PRACTICE AND PROCEDURE - jurisdiction question - Applicant seeks to review Commissioner of Taxation's refusal to determine a hardship application - no reviewable objection decision - application dismissed for lack of jurisdiction

PRACTICE AND PROCEDURE - stay application - Applicant seeks to stay recovery and enforcement activity undertaken by the Commissioner of Taxation - review application dismissed for lack of jurisdiction - stay application dismissed.

Administrative Review Tribunal Act 2024, ss 12, 17, 32, 97,

Income Tax Assessment Act 1997, s 995-1

Taxation Administration Act 1953 (Cth), ss 14ZL, 14ZU, 14ZW, 14ZY, 14ZZ, Schedule 1 s340-5

Federal Commissioner of Taxation v Administrative Appeals Tribunal [2011] FCAFC 37; (2011) 191 FCR 400

1. At the conclusion of an interlocutory hearing which had been listed before me on 1 July 2025 I gave a brief oral outline of my reasons for dismissing the Applicant's application under section 97 of the Administrative Review Tribunal Act 2024 (ART Act) for want of jurisdiction. I made this decision upon being satisfied that the application identified no reviewable decision.
2. At the same I refused an application brought by the Applicant for stay orders which were intended to restrain the Respondent from undertaking enforcement steps in respect of the Applicant's taxation liabilities.
3. These written reasons are intended to confirm and supplement the oral reasons I gave at the conclusion of that interlocutory hearing.
4. On 28 March 2025 the Applicant lodged an application with the Tribunal which asked (as I understood) that the Tribunal either:

(i) review a decision of the Commissioner of Taxation (the Respondent) to refuse to consider an application made under s340-5 of Schedule 1 of the Taxation Administration Act 1953 (TAA 1953) to be released from particular tax liabilities on the grounds of serious hardship (the Hardship Application); or > > (ii) consider that Hardship Application for itself.

5. In an email from the Applicant to the Tribunal on 7 April 2025 he indicated that "My request to the ART is that my ORIGINAL APPLICATION, as at the time of lodgment, is assessed on its merits".
6. The application also included a request that the Tribunal advise the Respondent to "STOP DEBT COLLECTION ACTION whilst the ART application is reviewed". This was soon followed on 1 April 2025 by a formal 'Request for Stay Order' which asked the Tribunal to exercise powers under s 32(2) of the Administrative Review Tribunal Act 2024 to stay the operation or implementation of the "reviewable decision" before it.
7. Under some uncertainty as to the decision sought to be reviewed the Tribunal's registry wrote to the Respondent on 31 March 2025 advising it that the Applicant had been "unable to provide the Tribunal with a copy of the decision they would like us to review" and requesting that the Respondent either provide a copy of the relevant decision or alternatively "if no such decision has been made by your agency, please confirm if and when a request for an objection decision was made".
8. The Respondent emailed its reply to the Tribunal registry on 7 April 2025 as follows:

We have conducted an extensive review of the Commissioner's records and advise that there is no reviewable decision concerning Mr Lee to enliven the jurisdiction of the Tribunal. > > Mr Lee applied for release from an income tax liability on the grounds of hardship in November 2023. At the time of that application Mr Lee had an unresolved dispute with the Australian Financial Complaints Authority (AFCA) concerning the Commonwealth Bank of Australia. The release application was also incomplete, with no household expenses listed, and included business expenses of a related company which had a number of outstanding lodgments. On 27 May 2024, Mr Lee was advised in a telephone conversation that the release application would be finalised without a decision and that the AFCA dispute would need to conclude, and the outstanding lodgments should be brought up to date, before reapplying for release. On 28 May 2024, the Australian Taxation Office wrote to Mr Lee and advised that the application for release could not be considered while that dispute remained unresolved as his capacity to pay could not be evaluated. A copy of that letter is attached. > > Mr Lee lodged a complaint with the ATO on or about 2 August 2024 and this was closed by the ATO complaints area on 30 September 2024. The ATO complaints area sent correspondence to Mr Lee on or about that date explaining that there was nothing actionable. Mr Lee lodged a complaint with the Inspector-General of Taxation on or about 13 January 2025 and this was closed on or about 4 March 2025. The IGOT sent correspondence to Mr Lee on or about that date setting out their findings that they could not find a deficiency in the ATO's consideration of Mr Lee's release application, that when applying for release on the basis of serious hardship the focus is on the person's current financial situation and that the ATO had advised a new application would need to be lodged. > > Mr Lee indicated on multiple occasions he would be re-submitting a release application, most recently on or about 13 March 2025, though Mr Lee requested more time to provide required information and the ATO advised it would provide until 31 March 2025. There has been no further contact by Mr Lee directly with the ATO. It is noted that Mr Lee's application to the Tribunal is dated 28 March 2025. > > There has been no release decision giving rise to objection rights, no objection lodged, and no objection decision made. Accordingly, there is no reviewable objection decision concerning Mr Lee's November 2023 release application to enliven the Tribunal's jurisdiction, and no other reviewable decision.

1. On 7 April 2025, and in the days following, Mr Lee, sent a series of emails to the Tribunal's registry which sought to address, what in his view, were factual errors contained within the Respondent's email and, in particular, explaining that:
   • He had lodged his Hardship Application with the Australian Taxation Office (ATO) on 18 October 2023;
   • By May 2024 he had been advised by the ATO that his application was yet to be processed; and
   • He had not lodged any complaints with the Australian Financial Complaints Authority (AFCA) until at least 6 months after the Hardship Application had been lodged with the ATO.
2. Mr Lee's correspondence also went extensively into a range of unfortunate circumstances, both financial and personal in nature, which he was intending to rely upon should the Tribunal be willing to reconsider the Hardship Application.
3. Further emails, documents and a range of lengthy submissions were provided to the Tribunal by the Applicant in the week before this hearing but unfortunately hadn't made their way to me by the commencement of the hearing. These were located and the hearing, after an adjournment to allow me time to briefly consider them, proceeded.
4. Without descending too far into the differences between the parties' understanding of the historical facts in relation to the Applicant's Hardship Application some incontrovertible facts arise from the material that is now before me and the following matters are not seriously in dispute:

(i) The applicant had either in October or November 2023 lodged with the Respondent the Hardship Application pursuant to s340-5 of Schedule 1 of the TAA 1953; > > (ii) By letter of 28 May 2024 the Respondent informed the Applicant that they couldn't consider the Hardship Application owing to the Applicant having an unresolved dispute with AFCA; > > (iii) The Applicant had not since 28 May 2024 lodged any Objection in relation to his Hardship Application; and > > (iv) The Applicant, on 28 March 2025, had lodged this application with the Tribunal seeking to review what he understood to be a 'deemed' refusal of his Hardship Application.

5. I am in no way surprised about matter (iii) above given that the Applicant, as he explained today, was left in some degree of uncertainty as to whether his Hardship Application had been implicitly refused by virtue of the Respondent refusing to entertain it. Ongoing invitations from the ATO to lodge new applications (which I acknowledge s340-5(4) does facilitate) would undoubtably have further persuaded him that no recourse was available in that regard. In any event, rather than lodging fresh applications the Applicant has since brought the current application and I am now required to consider determine two matters as follows:

(a) whether the Tribunal has jurisdiction to review the 'decision' which I have sought to identify in paragraph 2(i) above (the Jurisdiction Issue); and > > (b) whether the Tribunal should make an order under s32(2) of the Administrative Review Tribunal Act 2024 to stay the operation or implementation of the "reviewable decision" before it (the Stay Request).

1. The Tribunal's jurisdiction to review decisions is limited to where a provision in another act or legislative instrument empowers it to do so[1]. Absent such express conferral it is clear from the ART Act that the Tribunal, being an administrative decision-making body and a creature of statute, has no inherent jurisdictional entitlement or general powers of review.
2. Section 12 of the ART Act provides as follows:

12 Reviewable Decisions > > (1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision. > > (2) ......

3. Under Section 17(1) of the ART Act a "person whose interests are affected by a reviewable decision may apply to the Tribunal for review" of that decision.
4. For the most part, where a decision is made under a "taxation law"[2] by the Respondent the Tribunal's jurisdiction to review such decisions will be enlivened under provisions contained within Pt IVC of the TAA 1953. Pt IVC sets out the legislative pathway by which a Taxpayer may lodge an objection with the Respondent and thereafter (if still dissatisfied with the Respondent's decision) seek review with this Tribunal or appeal to the Federal Court.
5. Importantly, not all decisions of the Respondent made under a taxation law are capable of being objected to under Pt IVC and in this regard section 14ZL provides the limitation:

if a provision of an Act or a legislative instrument (including the provision as applied by another Act) provides that a person who is dissatisfied with an assessment, determination, notice or decision, or with a failure to make a private ruling, may object against it in the manner set out in this Part.

6. Relevantly, where an entitlement to lodge an objection arises then the following key provisions within Pt IVC are important:
   • Section 14ZU which provides that a taxation objection must made in the approved form, within the time identified in s14ZW and that it must fully set out in detail the grounds upon which the underlying decision is being objected to.
   • Section 14ZY which provides that where a taxation objection has been lodged the Respondent must decide whether to allow, partially allow or to disallow that objection. Such an objection decision is considered to be a "reviewable objection decision"[3]; and
   • Section 14ZZ which then provides that a person dissatisfied with a "reviewable objection decision" may "apply to the Tribunal for review of the decision" or may "appeal to the Federal Court".
7. As mentioned earlier the Applicant in either October or November 2023 sought to make the Hardship Application under s340-5 of the TAA 1953 which provides:

340 - 5 Release from particular liabilities in cases of serious hardship > > Applying for release > > (1) You may apply to the Commissioner to release you, in whole or in part, from a liability of yours if section 340 - 10 applies to the liability. > > (2) The application must be in the * approved form. > > (3) The Commissioner may release you, in whole or in part, from the liability if you are an entity specified in the column headed "Entity" of the following table and the condition specified in the column headed "Condition" of the table is satisfied.

you would suffer serious hardship if you were required to satisfy the liability

the dependants of the deceased individual would suffer serious hardship if you were required to satisfy the liability

Effect of the Commissioner's decision

(4) If the Commissioner:

(a) refuses to release you in whole from the liability; or

(b) releases you in part from the liability;

nothing in this section prevents you from making a further application or applications under subsection (1) in relation to the liability.

Notification of the Commissioner's decision

(5) The Commissioner must notify you in writing of the Commissioner's decision within 28 days after making the decision.

(6) A failure to comply with subsection (5) does not affect the validity of the Commissioner's decision.

Objections against the Commissioner's decision

(7) If you are dissatisfied with the Commissioner's decision, you may object against the decision in the manner set out in Part IVC.

1. Had the Respondent made a decision in respect of the Applicant's Hardship Application it is clear that s340-5(7) would have enabled the Applicant, should he remain dissatisfied, to lodge an objection and thereafter to seek review of any adverse decision at the Tribunal.
2. As it turns out, no such objection has been lodged or determined and, accordingly, the Tribunal has no jurisdiction to consider the Application.
3. Amongst the documents brought to my attention during the hearing was a lengthy written submission from the Applicant which sought to argue that the Respondent's refusal to determine the Hardship Application ought be considered a 'deemed decision' capable of being reviewed by the Tribunal. As mentioned above, the Tribunal has no general power of review under which such a question could be jurisdictionally engaged.
4. For the above reasons I must dismiss the application under s 97 of the ART Act as I am satisfied that the 'decision' sought to be reviewed is not reviewable.

1. As mentioned in the paragraphs above, in addition to the substantive application for review, the Applicant has also made an application which asks the Tribunal to consider whether it might exercise its powers to stay "ATO debt recovery while the Tribunal reviews my case".
2. Section 32 of the ART Act provides as follows_:_

Reviewable decision continues to operate unless Tribunal orders otherwise

General rule

(1)The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

Exception--Tribunal may stay operation or implementation

(2) However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.

1. As is plain from the language of the provision the Tribunal's ability to make stay orders is purposed towards "ensuring the effectiveness of the review". It obviously follows that where the application for review has been dismissed on the basis that there is no reviewable decision then any request for stay orders must be similarly dismissed.

[1] See Federal Commissioner of Taxation v Administrative Appeals Tribunal [2011] FCAFC 37; (2011) 191 FCR 400 at [14].

[2] as defined in the Income Tax Assessment Act 1997, s995-1

[3] Subject to the objection decision not being an "ineligible income tax remission decision" as described in s14ZS of the TAA 1953